In a much-anticipated judgment, the German Federal Court of Justice has dealt with the impact freedom of expression has on the interpretation of intellectual property law. The Court held that intellectual property law cannot be used to prohibit the publication of military situation reports which is in the public interest.
German troops are deployed in Afghanistan. Every week reports on the military situation in Afghanistan (and in other places in which members of the German forces are deployed) are drafted. These so called ‚military briefings‘ are distributed to selected members of parliament, to sections of the ministry of defence and to other ministries. They are categorized as ‚classified – restricted ‘. This is the lowest of four degrees of secrecy which exist under German law.
A German newspaper, the ‚Westdeutsche Allgemeine Zeitung (WAZ)‘ requested access to the military briefings on the situation in Afghanistan which had been drafted between 2001 and 2012. The request was denied. The newspaper succeeded to obtain copies anyway from an unknown source. It published parts of the documents on the internet in the form of scanned papers, with a short introduction and encouraged its readers to submit comments.
Proceedings in Germany
The German government requested an injunction, claiming an infringement of its copy right. The Regional Court issued the injunction; the Funke Media GmbH – the company which publishes the newspaper – appealed.
The Court of Appeal upheld the first-instance judgment. It relied on the ‘Law on copy right and related rights’. This law confers on the author the right to authorize or prohibit the publication of his work. Section 50 of the law provides for an exception: The publication in media for purposes of reporting on current events is permitted to the extent necessary for the reporting.
The Court of Appeal held that the military briefings constituted works protected by copy right. It stated that the exception which allows publication for purposes of reporting for current events did not apply since the mere publication of scanned copies did not constitute journalistic work and therefore did not fall within the scope of reporting.
Preliminary ruling of the Federal Court of Justice
The publishing house appealed to the Federal Court of Justice. The Federal Court of Justice referred the case to the European Court of Justice for a preliminary ruling. It expressed doubts that the military briefings enjoyed the protection of copy right law since it was questionable whether they constituted ‘original creations’. According to the Federal Court of Justice the question could remain open, though, if the publication was at any rate allowed for other reasons.
The ‘Law on copy right and related rights’ transposes into national law EU Directive 2001/29. The directive obliges member states to confer on authors the exclusive to authorize or prohibit the communication to the public of their work. It gives member states permission to provide for exceptions to or limitations on this right for the reporting in current events.
The Federal Court of Justice asked the European Court of Justice, among other questions, in which way the European Charter of Fundamental Rights had to be taken into account when assessing the scope of the exceptions applying to the reporting on public events. It also asked whether the fundamental rights of freedom of information and the freedom of the press could justify exceptions to the exclusive right of the author to prohibit the publication of his work.
On 29 July 2019, the Grand Chamber of the European Court of Justice handed down its judgment (C-469/17). It held that freedom of information and freedom of press, enshrined in article 11 of the EU Charter of Fundamental Rights, are not capable of justifying a derogation from the author’s exclusive right to communicate the work to the public which go beyond the exceptions stipulated in the directive.
With regard to the second question, the Grand Chamber of the European Court of Justice referred to the jurisprudence of the European Court of Human Rights. The ECtHR had held in Ashby Donald and others v. France that a balance had to be struck between copyright and freedom of expression. It had stated that the nature of the information divulged was particularly relevant, inter alia whether it contributed to political discourse.
The European Court of Justice held that domestic courts had to consider all circumstance of the case when striking the balance between the competing rights. The balancing act had to be based on an interpretation of the law which was consistent with its wording and at the same time had sufficient regard to freedom of expression.
Judgement of Federal Court of Justice
The Federal Court of Justice held that the publication had been lawful.
It left open the question whether the military briefings attracted the protection of copy right law. At any rate, the exception allowing the publication for purposes of reporting on current events applied. The Court of Appeal had erroneously decided that the publication of the military briefings did not constitute reporting. It had not considered sufficiently that the newspaper had not only published excerpts from the briefing but also drafted an introduction putting them into context, systematized them and invited readers to engage in a discussion.
When balancing the copyright against freedom of expression, it had to be considered that the military briefings had no commercial value. The objective of copy right law was not to ensure the German government’s interest in secrecy of the documents. There were other laws serving this purpose, which were not applicable in the case at hand, though.
Copy right law aimed at guaranteeing that it was up to the author to decide whether to share his work with the public. In the circumstances of the case, this interest did not outweigh the freedom of the press and invoked by the publishing house. In view of the political debate concerning the German involvement in Afghanistan and in view of the considerable public interest in the matter, the interest in publishing the briefings outweighed the author’s interest protected by copy right law.
The full text of the judgment is not available yet; the summary of the Federal Court of Justice’s reasoning is based on a press release published by the court.